Filed 5/27/ 16 P. v. Ngo CA6

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication

or or dered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SIXTH APPELLATE DISTRICT

THE PEOPLE

,

Plaintiff and Respondent,

v.

VY CHI NGO

,

Defendants and Appellants. H0 41981

(Santa C lara County
Super. Ct. No. C1473226 )

ORDER MODIFYING OPINION

AND DENYING REHEARING

[NO CHANGE IN JUDGMENT]

THE COURT:

It is ordered that the opinion filed herein on May 2, 2016

, be modified as follows:

1. On page 4, the last paragraph is deleted and the following paragraph is inserted

in its place :

Defendant contends on appeal that the jacket stolen on December 22 was

recovered, since he was taken to the security office immediately after the theft and he

must hav e been wearing the jacket at the time of his arrest. However, defendant did not

present any evidence to support that contention at the restitution hearing. Once the

prosecution established a prima facie case that the victim was entitled to the restitutio n

amount claimed, the burden shifted to defendant to disprove the claimed loss. ( Gemelli

,

supra , 161 Cal.App.4th at p. 1543.) Because defendant failed to present any evidence at

the restitution hearing regarding the recovery of the jacket, he did not sat isfy his burden2

to refute that claimed loss. Accordingly, we find no abuse of discretion in ordering

defendant to pay $2,534 in restitution to Abercrombie & Fitch.

There is no change in the judgment.

The petition for rehearing is denied.

________ ______________________________ RUSHING, P.J.

______________________________________ M Á RQUEZ, J.

______________________________________ GROVER, J.Filed 5/2/16 P. v. Ngo CA6 (unmodified version)

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SIXTH APPELLATE DISTRICT

THE PEOPLE,

Plaintiff and Respondent,

v.

VY CHI NGO,

Defen dant and Appellant. H041981
(Santa Clara County
Super. Ct. No. C1473226)

Defendant Vy Chi Ngo challenges a victim restitution order in the amount of

$2,534. Defendant pleaded no contest to one count of grand theft (Pen. Code, §§ 484

–

48 7, subd. (a) 1 ) based on taking merchandise from a retail store. He asserts that one of

the stolen items, a jacket, was recovered at the time of his arrest , and that the restitution

amount must therefore be reduced by the value of the jacket ($160)

. We co nclude that

the trial court did not abuse its discretion i n setting the restitution order amount , and we

will affirm the judgment.

I. FACTUAL BACKGROUND A ND TRIAL COURT PROCE EDINGS

On December 22, 2013, Loss Pr evention Officer Norm Bryan A. Cruz observed

de fendant conceal four bottles of cologne in his shirt while he was inside the

Abercrombie & Fitch store at the Valley Fair Mall

. Cruz saw defendant walk past all the

cashiers and le ave the store without paying for the cologne

. Cruz approached defendant

ou tside the store, and San Jose Police Officer Jonathan D. Shaheen joined them shortly

1 Unspecified statutory references are to the Penal Code.2

thereafter. Officer Shaheen placed defendant in handcuffs and escorted him to the

Abercrombie & Fitch security office. Officer Shaheen recovered four bottles of cologne

that were hidden in side defendant’s shirt. Defendant was then arrested and transported to

jail.

Cruz reviewed store security footage, which revealed that defendant had also

stolen a blue and green jacket on December 22 , as well as other items on Decembe r 14,

18, and 20. T he security footage showed that on each of tho se four days, defendant

entered the store without a jacket, concealed various items in his clothes, and then left the

store w earing a stolen jack et and concealing merchandise in his clothes

.

D efendant was charged with one count of gran d theft of personal property valued

over $950 (§§ 484

– 487, subd. (a) ) taking place “ [ o ] n or about and between”

December 14 and December 22, 2013. After defendant pleaded no contest , t he trial court

s uspended imposition of sentence for three years and placed defendant on formal

probation. A mong other condition s of probation, the trial court ordered defendant to

serve 90 days in jail and to pay restitution

.

T he trial court held a formal restitution hearing

. A probation report recommend ed

that defendant be ordered to pay Abercrombie & Fitch $2,534 in victim restitution. A

statement of loss submitted by Abercrombie & Fitch provided a detailed account ing of

property lost in the four thefts. T he statement of lo ss included a description of the stolen

items, the quantity of the items taken, the date of theft, and the value of the items. The

statement reported 35 bottles of cologne and four out er wear jackets stolen, f or a total

value of $3,006. The statement of l oss also not ed that four bottles of cologne, v alued at

$472, w ere recovered. The victim claimed the remaining amount of $2,534 as the total

economic loss. The trial court also reviewed secu rity footage of the four thefts, the police

report, and a report prepared by defendant’s investigator

.

Defendant argued that no restitution was owed. Defendant pointed out that on

December 22, he was caught with four bottles of stolen cologne on his person, and “the3

property was returned in the same condition that i t was taken.” Defendant further

a sserted that t he security videos were unclear as to the identity of the thief in the three

earlier incidents and as to how many items were stolen. Defendant asserted that the

security videos provided insufficient evidence to support restitution

.

The prosecut or responded that defendant had pleaded no contest to stealing more

than $950 worth of items from the store and that the security footage shows him stealing

various items. The prosecut or argued that defendant presen ted no evidence to refute the

total amount of loss claimed.

The trial court ordered $2,534 in victim restitution. The court found that the

victim showed economic loss of $2,534 by a preponderance of the evidence, and that

defendant had not adequately re futed the claimed loss.

II. DISCUSSION

Victims of crime have a state constitutional right to restitution for losses resulting

from criminal acts against them. (Cal. Const., art. I, § 28, subd. (b)(13)(A).) The

Legislature has codified this right in sectio n 1202.4, which provides in relevant part:

“[I]n every case i n which a victim has suffered economic lo ss as a result of the

defendant’ s conduct, the court shall require that the defendant make restitution to the

victim or victims in an amount established by court order, based on the amount of loss

claimed by the victim or vict ims or any other showing to the court.” (§ 1202.4, subd. (f).)

Section 1202.4, subdivision (f)(3) sets forth several categories of losses for which a

victim may claim reimbursement, including “[f] ull or partial payment for the value of

stolen or damaged property. The value of stolen or damaged property shall be the

re placement cost of like property

... .” (§ 1202.4, subd. (f)(3) (A .)

A defendant is entitled to a restitution hearing “to dispute the determination of

the amount of restitution.” (§ 1202.4, subd. (f)(1).) “The standard of proof at a

restitution hearing is preponderance of the evidence, not reasonable doubt.” ( People v.

Holmberg (2 011) 195 Cal.App.4th 1310, 1319

– 1320, citing People v. Gemelli (2008)4

161 Cal.App.4th 1539, 15 42 ( Gemelli ).) “Section 1202.4 does not, by its terms, require

any particular kind of proof. However, the trial court is entitled to consider the probation

report, and, as prima facie evidence of lo ss, may accept a pro perty owner’ s statement

made in the probation report about the value of stolen or damaged property. ” ( Gemelli, at

pp. 1542

– 1543.) After the prosecution has made a pr ima facie showing of the victim’ s

loss, “the burden s hifts to the def endant to disprove the amount of losses claimed by the

victim.” ( Id. at p. 15 43

. ) “ Absent a challenge by the defendant, an award of the amount

specified in the probation report is not an abuse of discretion.” ( People v. Keichler

(2005) 129 Cal.App.4th 1 039, 1048.)

We review a restitution order for abuse of discretion

. ( People v. Giordano (2007)

42 Cal.4th 644, 663.) “ ‘When there is a factual and rational basis for the amount of

restitution ordered by the trial court, no abuse of discretion will be fo und by the

reviewing court.’ ” ( People v. Mearns (2002) 97 Cal.App.4th 493, 499.)

Here , the prosecution made a prima facie showing of Abercrombie & Fitch’s

economic loss of $2,534

. It presented security footage showing defendant entering the

store on De cember 14, 18, 20 and 22 and stealing various items , including jackets and

bottles of cologne

. Further, the prosecution submitted Abercrombie & Fitch’s statement

of loss, which detailed the items that were stolen on th ose four dates and the retail value

o f those stolen items. The statem ent of loss also specifie d the recovered items, which

consisted of the four bottles of cologne stolen on December 22. T he statement of loss

explicitly state d that the jacket at issue was not recovered.

Defendant contend s on appeal that the ja cket stolen on December 22 was

recovered, since he was taken to the security office immediately after the the ft and he

must have been wearing the jack et at the time of his arrest. However, defendant made no

such argument to the tria l court, nor did he present any evidence to support th at

contention at the restitution hearing

. O nce the prosecution established a prima facie case

that the victim was entitled to the restitution amount claimed, the burden shifted to5

defendant to disprove the claimed loss. ( Gemelli

, supra

, 161 Cal.App.4th at p. 1543.)

Because defendant failed to present any evidence or argument at the restitution hearing

regarding the recovery of the jacket, he did not to satisfy his burden to refute that claimed

loss. Accordingly, we find no abuse of discretion in ordering defendant to pay $2,534 in

restitution to Abercrombie & Fitch

.

III. DISPOSITION

The judgment is affirmed.____________________________________ Grover, J.

WE CONCUR:

________________ ____________ Rushing, P.J.

____________________________ Márquez , J.